JSV v CGR, 2018 ABQB 247


10.33: Court considerations in making costs award

Case Summary

Following a child custody Trial, the parties sought directions with respect to Costs. The mother, JSV, sought enhanced or indemnity Costs against the father, CGR, who was unsuccessful at Trial. Prior to the Trial, CGR was the primary caregiver to the children. CGR raised sexual abuse allegations against JSV resulting in Child & Family Services involvement, JSV being arrested and charged (although those charges ultimately were not pursued), and JSV’s access having to be supervised. At Trial, the allegations raised against JSV were found to be “unreliable, unsubstantiated, and false”. Over the course of the litigation, CGR was found in contempt for failing to follow interim parenting Orders, delaying preparation of a Practice Note 8 Report and failing to pay his one half share of the Report, failing to provide Undertakings given at Questioning, and failing to provide relevant and material records until the day of Trial. Following Trial, Justice Hopkins awarded JSV sole custody, and imposed supervised access on CGR.

Justice Hopkins acknowledged that the Court has previously awarded enhanced costs and has denied full indemnity costs in child custody disputes, however, His Lordship noted that those cases turn on their own facts. Hopkins J. noted that costs may be awarded on 3 bases: “party and party” where costs are based on Schedule C or a multiple thereof, “solicitor client” where indemnity is awarded for those costs which are “essential to and arising within the four corners of the litigation”, and “solicitor and own client” which are complete indemnity costs and can include payment for services not strictly essential to the conduct of the litigation. Hopkins J. noted that the phrase “indemnity basis” should be preferred to “solicitor and his own client” to avoid the confusion which persists surrounding the latter two forms of costs awards.

Justice Hopkins noted that departing from party and party costs should only done be in rare and exceptional circumstances, where a litigant’s conduct is “reprehensible, scandalous or outrageous”, and further noted that Alberta Courts have held that complete indemnity or solicitor and own client costs should be reserved for the most exceptional cases. Hopkins J. found that CGR had willfully and deliberately disregarded the Court’s Orders, and “took a contemptuous approach to [the] litigation”, in addition to having made severely stigmatizing allegations of reprehensible conduct which were found to have been made in malice. Justice Hopkins held that solicitor client Costs were appropriate in the circumstances, and that CGR’s impecuniosity was not relevant to his liability for Costs.

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